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City fight over mayoral succession ongoing

R. Carlos Carballada

R. Carlos Carballada would like to move past the question of his authority as acting mayor, but there may be another challenge on the horizon.

Monroe County Supreme Court Justice John J. Ark on Monday ruled in the city’s favor in the latest lawsuit which was filed by Harry Davis, a Rochester businessman who is a candidate for the post, but his attorney said there are grounds for an appeal.

Justice Ark was critical of the Rochester City Council’s failure to appoint a mayor as required by city charter, but ruled that its subsequent actions were lawful and dismissed Davis’s complaint.

Justice Ark, reading from the last two pages of his seven-page decision, noted the issue of mayoral succession would not be before the court had either Acting Mayor Thomas S. Richards appointed a deputy mayor before he resigned Jan. 20, or had the City Council filled the mayoral vacancy by appointment.

“Since neither of these processes were invoked, Mr. Carballada succeeded ‘to the powers and duties, but not the office’ of mayor …,” under the city’s comprehensive emergency preparedness plan, as updated Jan. 1, Justice Ark said, calling the process “less direct” and “extraordinarily convoluted,” but effective.

Richards, former corporation counsel, was appointed deputy mayor by Mayor Robert J. Duffy, who resigned Dec. 31 to become lieutenant governor. Upon Duffy’s departure, Richards assumed the title of mayor, resigning three weeks later.

Richards, who is also running for mayor, did not appoint a deputy mayor in his brief term, but he did update the mayoral succession plan to make the commissioner of Neighborhood and Business Development next in line. Carballada, who held that post, “serves as a de facto mayor by exercising the powers and duties of the mayor’s office,” Justice Ark wrote.

Davis was challenging Carballada’s authority to act as mayor. His attorney, Arthur J. Giacalone of Erie County, argued City Council, after the resignations of Duffy and Richards, violated its obligation to appoint a mayor, under section 3-2.1 of the city charter, which deals with a vacancy in the office of mayor.

According to the charter, City Council shall appoint a mayor within 30 days of a vacancy and if it fails to do, there shall be a special election within 90 days.

“Petitioner maintains the section 3-2.1 does not authorize the City Council to disregard its obligation to appoint a mayor and to treat the scheduling of a special election as an optional method for filling the vacancy,” Justice Ark said in his decision.

“Respondents argue the petitioner’s third cause of action rests on the assumption that the City Council must appoint a mayor instead of filling the mayoral vacancy by special election.”

Giacalone argued the special election clause is only triggered after 30 days from the date the vacancy is created if City Council fails to appoint a successor.

The city, represented by Christopher D. Thomas of Nixon Peabody LLP, countered City Council fulfilled its obligation to consider the appointment of a mayor and had the authority to schedule a special election.

Had the City Council appointed a mayor, an election to fill out the rest of Duffy’s term would be held in November. The scheduling of a special election leaves candidates with less time to campaign.

Giacalone argued Davis is harmed by having two weeks to collect the required number of signatures to get on the ballot for a special election and not six weeks, the amount of time allotted for the general election.

In addition, his physical disability (half of both feet were amputated) make walking in winter conditions and standing for prolonged periods extremely difficult and painful, something that would be more easily carried out in the summer and early fall leading up to a general election.

Justice Ark ruled that Davis lacks standing for all causes of action; that he alleged nothing to demonstrate how he had been injured by Carballada’s succession to the position of acting mayor; and that he did not sustain an “injury in fact” in his claims that City Council violated its obligation to appoint a mayor and that its Jan. 25 action, setting the special election date, should be nullified.

“The court agrees with petitioner that city charter section 3-2.1 mandates City Council fill a vacancy in the office of mayor by appointing by a majority vote,” Justice Ark read. “City Council failed to do so. However, the 3-2.1 requirement of a majority vote of the council makes a court mandated remedy impossible.”

He said just as a legislative body cannot tell a court how to decide a matter, a court cannot dictate how a legislative body should vote.

He said the city charter contemplates City Council failing to appoint a mayor, as happened, and then mandates the holding of a special election within 90 days, essentially providing “a partial remedy for that failure.”

In dismissing Davis’s complaint, Justice Ark found:

  • The failure of City Council to appoint a mayor mandates that a special election be held.
  • City Council has the continuing authority to appoint a registered Democrat, Duffy’s party.
  • Carballada’s succession under the emergency preparedness plan is lawful (Richards’s update “states that it is to apply for all purposes, not just emergencies.”)
  • Vacating Carballada’s succession to the powers and duties of mayor would have no affect on the City Charter  requirement of a special election, but would leave the city without mayoral authority.

Justice Ark also said the city’s procedure for succession needs clear review and possible change.

“We’ll consider our options,” Giacalone said outside the courtroom. “We certainly are disappointed by the decision. I’m very curious to read the judge’s decision and see how he reached that.”

He said there are grounds for appeal and questioned how Richards, as corporation counsel, could advise the City Council on what to do in mayoral succession to a post he wanted, but not as a temporary appointment until a general election.

“Part of my frustration right now is the person who caused this problem is the one who is benefiting,” Giacalone said, referring to Richards.

Giacalone said it was the duty of Richards’s office to tell City Council it had a duty to appoint a mayor, but instead advised that it didn’t have to and could have a special election, favoring his own position in a run for the office.

He said Richards did not want an appointment that would lead to a special election and that had he appointed a deputy mayor, there would have been someone to fill the position when he resigned.

“We’re pleased,” Carballada said. “We were hopeful that that’s how the judge would decide. We’re glad that’s over. We can take it off the table and concentrate on more important issues.”

He noted the city is facing a huge deficit and said he hopes there is no appeal because it will only add to city expenses.